Limited Preemption of
Firearms Laws: A Good Step for Civil
Rights

Synopsis:

Senate Bill 25
preempts some local firearms laws, based on the legislature's responsibility to
protect the most important of all statewide concerns: the constitutional rights
of Colorado's citizens. The bill enforces those rights with four specific
measures:

Protecting the
rights of hunters to travel to transport firearms in their car while on the way
to a hunting trip; and protecting the right of drivers to posses a firearm for
lawful protection in their automobile

Requiring that
restrictions or prohibitions on the unconcealed carrying of firearms be
accompanied by posted signs, so that citizens can obey the law.

These four
common-sense protections of civil rights do not interfere with any legitimate
local interests in firearms regulation.

Discussion:

Forty-four states
have some form of firearms preemption. From very liberal Rhode Island and
Maryland on the Atlantic Ocean, to very liberal California and Oregon on the
Pacific Coast--and almost everywhere in-between--state legislatures have decided
to prohibit some or all local laws regarding firearms. These preemption laws
have two foundations: First and foremost, protecting citizens from infringement
of their federal Second Amendment rights, and from infringements of their state
constitutional rights to arms and rights to self-defense. The second foundation
is simply good government, giving citizens one clear statewide law to follow,
rather than a confusing pastiche of local laws.

The only states
totally without preemption are Colorado, Hawaii, Illinois, Kansas, New
Hampshire, and Ohio. Like Colorado, New Hampshire is currently considering
enactment of a preemption statute.

Various "fact
sheets" from the Brady Campaign misstate the extent of preemption laws. For
example, a "Facts and Information" brochure about preemption laws states that
there is no preemption in Connecticut, Massachusetts, Nebraska, and New York. In
fact, Connecticut forbids local governments to make gun dealer licensing more
stringent than state laws. (See Dwyer v. Farrell, 475 A.2d 257 [1984].)
Massachusetts preempts all gun licensing (Mass. Gen. Laws ch. 140 sect. 129B),
and the state constitution forbids local laws inconsistent with state law; for
this reason, Boston's Dec. 1989 ban on "assault weapons" was not allowed to go
into effect until the state legislature later passed a bill authorizing the ban.
Nebraska's state constitutional right to arms declares that the right "shall
not be denied or infringed by the state or any subdivision thereof" (Neb.
Const., art. I, sect. 1); Nebraska's statewide handgun laws are preemptive
except for measures enacted before 1991. (See Neb. Stat. 69-2425.) New
York State preempts handgun licensing. (N.Y. Penal Law, sect. 400). Accordingly,
there are only six states without some form of preemption.

In states which
enact preemption laws, the leading model is to totally forbid local gun laws.
Half of the preemption states--including Wyoming, New Mexico, and Utah--take
this approach. About half a dozen others completely prohibit all new local laws,
but allow some grandfathered local laws to remain on the books.

Senate Bill 25
is much narrower than the majority model of complete preemption. While the bill
would eliminate some abusive local laws, a great many local laws would remain
untouched.

Some of the
Matters which SB 25 Does Not Affect:

Local
governments would retain the power to control the dischargeof firearms.
Thus, Grand Junction's law which makes it a crime for a person to shoot a BB gun
in his own basement would not be affected.

Local
governments would retain the power to control or even prohibit the illegal
concealed carrying of firearms. Senate Bill 25 does not address the issue of
concealed carry in any way. Senate Bill 24, if enacted, would limit local
controls over concealed carry by licensed persons who pass a background check
and safety training. Neither Senate Bill 24 nor 25 would restrict local laws
against persons who carry concealed firearms without a permit.

And as we shall
see when we examine what SB 25 does, the local laws which are prohibited are not
legitimate elements of home rule, but rather are vexatious oppressions of the
exercise of civil rights. Even the specific limitations of Senate Bill 25 hardly
foreclose legitimate local laws.

Firearms in
Private Vehicles:

Under statewide
law, it is lawful to carry a handgun in an automobile for lawful protection. A
Denver ordinance more or less nullified this law, allowing such carrying in
response only to "a direct and immediate threat." In other words, unless you
knew in advance that you would be attacked during a particular automobile trip,
it was illegal to carry a firearm for protection in a car. The Denver City
Council made the problem significantly worse by enacting a
property
confiscation ordinance which allowed for the seizure of an automobile,
imposed a presumption of guilt, and allowed the City Attorney to wait 30 days
before even beginning the legal proceedings at which an automobile owner might
prove his innocence.

In 2000, the
legislature partially addressed this problem. The legislature made defensive gun
carrying in cars a matter of statewide concern (thus partially preempting
Denver's ordinance)--but only for people traveling between jurisdictions. Senate
Bill 25 would fix two loopholes in that 2000 statute.

First, the bill
would apply preemption to automobile trips within a jurisdiction. This is
appropriate because Article II, section 3 specifically guarantees that all
Coloradoans have the "natural, essential, and inalienable rights" of "defending
their lives" and "protecting property." This right should not be abolished
simply because one is not driving across county lines.

Second, the bill
protects the carrying of weapons in automobiles for lawful hunting. Thus, if a
person is driving from Douglas County to Routt County for a hunting trip, he
travel on I-25 and I-70 through Denver, without worrying that his automobile and
hunting rifle will be confiscated.

It is very
important to note that current state hunting law forbids the carrying of loaded
rifles or shotguns in automobiles. C.R.S. 33-6-125. Accordingly, gangsters
cruising a neighborhood at night with loaded rifles in their car would not be
able to plausibly claim that they were on a hunting trip. And of course the
police would evaluate any driver's claim about being on a hunting trip by making
common-sense inquiries such as whether the driver has an in-season hunting
permit, whether the car is carrying other hunting gear, and the route that
police officer observed the driver following (would likely be traveling directly
on a main thoroughfare, not meandering on back streets).

Existing state
law, which SB 25 would amend, refers to "weapons," a broader category than
"firearms." This makes sense, because a hunter might carry items such as
hatchets or knives. Existing state law also makes it illegal to posses a
"dangerous weapon" (firearm silencer, machine gun, short shotgun, short rifle,
ballistic knife) or an "illegal weapon" (blackjack, gas gun, metallic knuckles,
gravity knife, switchblade knife) unless a person has a special permit. C.R.S.
18-12-102. A separate statute prohibits the possession of an "explosive or
incendiary device" without a special permit. C.R.S. 18-12-109. Senate Bill 25
does not change these current statewide prohibitions in any way.

Government
Lists of People Exercising Constitutional Rights:

Senate Bill 25
makes it illegal for local governments to compile lists of lawful gun owners or
of lawfully-owned guns. Especially in light of the Denver police "spy files"
scandal, it ought to be obvious that local governments ought not to collect
lists of people who exercise their civil rights. Local government should not be
in the business of compiling lists of people who belong to political
organizations, lists of people who buy books, lists of books owned by a
particular individual, or lists of people who have undergone particular medical
procedures. Of course if a government is conducting a legitimate criminal
investigation about a particular individual, some of these inquiries might be
proper; the point is that the government should not collect lists of individuals
about whom there is no suspicion at all.

Significantly,
federal laws already ensure the maintenance of records which will facilitate
legitimate criminal investigations involving firearms, without infringing the
privacy rights of law-abiding gun owners. Ever since the federal Gun Control Act
of 1968, all firearms manufactured or imported in the United States must contain
a serial number. The manufacturer or importer must keep records showing to whom
the firearm was transferred, and when the transfer took place. A firearms
wholesaler must do the same, and so must a firearms retailer. The retailer's
records will contain the name, address, birth date, and other information about
the consumer purchaser of the firearm. The retailer must keep permanent files of
the "Form 4473" registration records.

If local police
find a gun at a crime scene, or if they find a gun which might have been stolen,
and which they wish to return to the owner, the police contact the federal
Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). Using the gun's
serial number, BATFE can quickly "trace" the gun from its manufacturer to its
wholesale to its retailer to its retail purchaser. Federal law requires all
licensed gun sellers to cooperate with BATFE traces. BATFE currently traces
hundreds of thousands of guns every year.

This system
means that, ordinarily, a law-abiding person's purchase of a firearm remains
private, since the firearms retailer keeps the registration form, rather than
sending the form to the government. When there is a law enforcement need to
investigate a gun's ownership records, the relevant records are readily
available.

Accordingly, the
practice of the Denver and Colorado Springs Police Departments of keeping
government registration records of law-abiding gun owners is a waste of money,
because it duplicates records which can be made available to the police
departments through a BATFE firearms trace. The local police record-keeping
needlessly invades the privacy of law-abiding citizens.

No
Prohibition of Lawful Firearms:

The third
specific item of Senate Bill 25 forbids local governments from banning the
possession of firearms which are lawful under state and federal law. This
section of the bill is necessarily unacceptable to gun prohibition advocates,
but the section does not interfere with non-prohibitory gun controls.

Only a very few local ordinance are
affected by this prohibition. Denver Revised Municipal Code 38-122(c) makes it
illegal for a retailer or wholesaler to sell a firearm:

(1) Of any material having a melting point (liquidus) of
less than one thousand (1,000) degrees Fahrenheit; or

(2) Of any material having an ultimate tensile strength
of less than fifty-five thousand (55,000) pounds per square inch; or

(3) Of any powdered metal having a density of less than
seven and five-tenths (7.5) grams per cubic centimeter.

This 1986 ordinance is barely
rational. If consumers often stored their handguns in extremely high temperature
ovens, and then accidentally melted their handguns while baking a cake at 1,100
degrees, the ordinance might make some sense as a consumer protection measure.
What the ordinance really is, however, is deliberate economic discrimination
against poor people's right to self-defense.

The ordinance outlaws guns made with
less-expensive alloys, as opposed to pure metals. The ordinance does not affect
expensive guns made by companies like Ruger or Smith & Wesson, but does ban
less-expensive guns. Stated another way, the ordinance aims to make guns
unaffordable for poor people.

In a Northwestern Law Reviewcomment, author Markus Funk
examines
discriminatory gun laws such as Denver's. He shows that the laws have no
plausible basis in public safety: the banned guns (while not the right choice
for a competitive target shooter) are not unsafe or unreliable. They tend to be
less powerful (and hence less lethal) than more expensive handguns. The effect
of such laws is to transform self-defense from a right guaranteed to everyone to
a privilege dependent not available to the poor. If a person can only afford
$150 for a handgun, that person probably needs the handgun much more than
someone who can afford a $1,200 target pistol; the first person is much more
likely to live in a high-crime neighborhood with poor police protection.

Because the Denver ordinance targets
the poor for special burdens, it an especially appropriate subject for statewide
preemption, not only to protect the Colorado Constitution's Article II, section
3 right to self-defense and the Article II, section 13 right to bear arms, but
also to protect the U.S. Constitution's Fourteenth Amendment, which requires
each state to guarantee to every person the equal protection of the law. It is
certainly not "equal protection" when self-protection is made unaffordable for
poor people.

The second type of law which would be
preempted by SB 25 is the ban in Denver and Vail of so-called "assault weapons."
These laws a direct copy of a (since-modified) California statute which was
created by some people looking through a picture book of guns, and picking out
which guns should be banned. As I
detail in the Journal of Contemporary Law, bans on so-called "assault weapons" are based
on cosmetics. The banned guns are not more powerful or faster-firing than other
guns; they simply look different.

The banned guns do, however, tend to
be quite sturdy and reliable. For persons with relatively low upper body
strength, they are easier to fire accurately, because the self-loading mechanism
of the gun absorbs much of the gun's recoil.

In 1989-94, I participated in
litigation in which individual plaintiffs and the Attorney General of Colorado
(first, Duane Woodard, then Gale Norton) argued that the Denver "assault weapon"
ordinance violated the state Constitution's right to keep and bear arms. A
Denver District Court declared the ordinance unconstitutional. A divided opinion
of the Colorado Supreme Court upheld the ordinance--ignoring
the quite explicit original intent of the 1876 Colorado Constitution, misstating
the court's own precedents, and finding no problem with the Denver ordinance's
explicitly-stated intent to ban guns useful for personal protection (dubbed
"anti-personnel") while not banning guns made mainly for sports.

Rather significantly, the dissent in
the Denver gun ban case (Robertson v. Denver)argued that the
Denver ordinance was preempted by existing state law. The majority opinion
simply refused to address this issue.

The Robertson case illustrates
how courts can sometimes disparage constitutional rights. Because legislators
have their own oath and duty to defend the constitution, legislators are not
required to treat anti-liberty decisions by judges as the outer boundaries of
constitutional rights. In 1919, the U.S. Supreme Court
ruled that it was no
violation of the First Amendment to send Eugene Debs to federal prison for
speaking out against U.S. participation in World War One. That horrible Court
opinion did not preclude a constitutionally-conscientious state legislator from
voting for a Free Speech Preemption Bill which would abolish local anti-speech
laws similar to the law which was used to imprison Debs.

Especially in a period when ordinary
citizens everywhere in America face the possibility of being attacked by foreign
terrorists, it is appropriate for the state legislature to eliminate laws which
substantially interfere with the ability of Coloradoans to protect their
families and communities. With our nation at war, now is certainly not the time
for ordinances which attempt to prevent people from protecting themselves.

In 1994, Congress enacted a ban on
"assault weapons" manufactured after September 1994. 18 U.S. Code 922(v). Denver
would, under SB 25, be allowed to ban post-1994 "assault weapons" conforming to
the federal definition.

Open Carrying

The fourth
section of Senate Bill 25 specifically protects the power of local governments
to prohibit or regulate the open carrying of firearms, provided that the
locality posts appropriate notices. Since there is no statewide law against
unconcealed carrying of firearms, this posting requirement provides appropriate
notice to people so that they can obey local laws.

Conclusion

1.
Transportation of firearms in cars for hunting and for lawful protection.

2. Prohibiting
governments spy files compiled on citizens just because the citizens purchase a
firearm.

3. Ending local
prohibition of firearms which are legal under federal and state law.

4. Requiring
posting so that citizens are informed about areas where open carrying of
firearms is illegal.

Lobbyists who
oppose even these simple reforms are spreading claims that SB 25 will wipe out
local gun laws. All one needs to do to see the falsity of this claim is to read
the bill itself. Indeed, the most serious flaw of SB 25 is that it does not go
nearly far enough.

Senate Bill 25 is an extremely
limited preemption law. Each of the four subjects which it addresses are in need
of reform. However, SB 25 does nothing regarding ammunition and firearms
accessories. It does not address grossly overbroad laws on firearms discharge,
as the Grand Junction ordinance. Even if SB 25 becomes law, Colorado will still
have a very long way to go to achieve a strong firearms preemption like the laws
in the majority of states.

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